21 | August 2023
The Schoolhouse Gate:
Student Free Speech
assessing whether student speech is protected by the U.S. Constitution. TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969) This seminal case involved five students, including four Tinker siblings, who wore black armbands to school in protest of the Vietnam War. The Supreme Court recognized that students do indeed have constitutional rights during the school day. The Court also recognized the “special characteristics of the school environment” that may limit those rights. The standard birthed here judged student speech or expression by whether it “materially or substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.”
Wesley L. Nute, Jr., Senior Associate
It can hardly be argued that…students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” - Justice Fortas, Supreme Court of the United States (1969)
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There is no escaping the spotlight on education in Texas and across the nation. Whether due to the synergies between social media and a growing crescendo of voices shouting their ideologies from their proverbial rooftops or due to some other cause, the responsibility of educators to assess student speech has increased even as schools grapple with employee speech and a
more vocal contingent of parents. Certainly, our students are not sequestered from the hot topics of the day. Their technology-driven generational ethos is teeming with opportunities for them to join the fray. That same technology that affords students additional and greater platforms for sociopolitical engagement also gives them a vehicle for other controversial expression, including the potential for cyberbullying efforts outside of school that now tend to keep pace or even “improve” upon those oldschool, in-person bullying efforts school officials used to focus on almost exclusively. Allow a refresher then: let’s take a walk down the decades-long student free speech jurisprudence to see if we can’t just stumble upon some best practices or critical considerations when
Justice Fortas, in his majority opinion, made clear that public schools could not prevent students from expressing an antiwar viewpoint that just happened to be out of step with the prevailing state wisdom. The classroom was instead to be a “marketplace of ideas.” We then have a case here that involved on-campus speech that did not cause disruption. Students 1 – Schools 0. BETHEL SCHOOL DISTRICT V. FRASER (1986) While some time had passed since Tinker, the Court re-entered the chat for this case. Matthew Fraser, a high school student in the Bethel School District in Washington, was suspended for making a speech that included sexual innuendo at a school assembly. The Supreme Court ruled that the suspension did not violate Fraser’s First Amendment right to freedom of speech, thus limiting the Tinker